Tag: Premium

by Will Wilkinson

The Supreme Court ruled today, in a 8-1 decision, that a police stop based on a officer’s false beliefs about the law can lead to a legally valid search.

Nicholas Heien was stopped in his car by a Surry County, North Carolina cop for having only one working brake light, which is not against the law in North Carolina. Heien then stupidly consented to a search of his car, which turned up a bag of cocaine. Heien subsequently argued that the search ought not to valid, and the drug charge dropped, since the traffic stop was based on the officer’s mistaken understanding of the law. The crux of the issue, legally, is whether a police officer can have a “reasonable suspicion” that a law has been broken – that’s the prevailing  standard for a valid stop – when that suspicion is grounded in ignorance of the law. The court says “reasonable mistakes of the law,” like the erroneous belief that two working brake lights is legally mandatory, may make the officer’s suspicion wrong, but not unreasonable.

This is too much. We’ve somehow arrived at a place where police can do pretty well whatever they like. Cops already have immense discretion to detain us. There’s a good deal of talk these days, and rightly so, about the “criminalization of poverty,” which is part of broader trend toward the criminalization of life through the proliferation of regulation. We are, all of us, breaking some law pretty much all of the time. Even if the cop is wrong about which law we happen to be breaking, he’s apparently not wrong to prevent us from going about our lawful business. When we’re all criminals, all suspicion, even ignorant suspicion, is “reasonable.”

Who gets the raw end of this deal? The most “suspicious” among us, of course. Michael Munger, a Duke University political scientist, gets to the heart of the issue of overcriminalization, and the dilemma it creates for those of us who want a state that is both active and just:

We have criminalized so many behaviors (in the Staten Island case, selling packs of cigarettes!) that we have given the police enormous pressure to perform — and gigantic latitude to act on prejudice, bigotry, and simple anger. The police, in their defense, have an impossible job. They have come to see almost everyone around them, every day, as a lawbreaker and a danger to society. Harvey Silverglate has famously estimated that most of us commit at least three felonies per day. The only thing that prevents us from being jailed is the discretion and public spiritedness of the prosecutor. …

As long as overreaching laws effectively criminalize being black or poor, it’s not surprising that the police will continue to treat black people and poor people as criminals. This kind of race-based law enforcement is given the stink eye by our friends on the left, but they can’t seem to draw the obvious inference: the answer is not better police or more enlightened officials. The answer is fewer laws. That’s the long division in our society, the most important difference that arises from class and social status. Decriminalize normal nonviolent daily activity, and the police will have fewer excuses to harass people they don’t like — people who often can’t fight back.

Now, I don’t think decriminalizing nonviolent daily activity is any sort of panacea. There’s a great deal more than needs to be done to rein in America’s lawless police, and I’ll be discussing some ideas for doing that over the next few days. But simplifying the law and decriminalizing peaceful daily life promises to somewhat reduce the exercise of the sort of police discretion which, when combined with our culture’s lingering ethos of white supremacy, amounts to systematic racial oppression. That’s worth doing. Moreover, simplifying the law reduces the chance that police will act on “reasonable mistakes” about what it says.

That said, I do disagree to some extent with Munger. Fewer laws isn’t the only obvious inference. Better police and more enlightened officials have got to be part of the answer, or reform is doomed before it begins. Like Munger, I think it’s idiotic to expect public officials to act like angels, and I believe we ought to design our institutions from unabashedly cynical assumptions about human motivation. But it is possible to demand a minimum standard of decent behavior without succumbing to what Munger calls the fantasy of “unicorn governance.” Other countries have secret agents that don’t torture people and police that don’t behave like lawless thugs, and that’s not too much to ask.

by Michelle Dean

I can wax rather sentimental when it comes to protests. While I didn’t get out to the Millions March on Saturday for personal reasons, I’d meant to. I like marches. Even the best ones have a slight air of chaos, and the dominating atmosphere is usually angry despair. But there’s something about just the act of walking together that can restore your faith in the usefulness of civic engagement. And given the news of the last few weeks – which to me has felt like a relentless chant of police brutality, rape and state-sponsored torture, rinsed and repeated endlessly – I’ve been feeling the need to have my faith restored in the usefulness of civic engagement. I suspect I’m not alone.

So my heart soared when I saw those pictures of clogged streets come up in my Twitter feed. Here were people doing what they could to challenge injustice. I felt a faint flickering of hope.

And then along came Deadspin last night to post the above video of a bunch of drunken louts in Santa suits heckling the protesters.

These men are participants in a weird New York tradition known as “SantaCon.” After nearly ten years of living here I can’t figure out if SantaCon has a point. The idea, to the extent that any kind of “idea” animates SantaCon, seems to simply be that it is enjoyable to get drunk on cheap alcohol while wearing even cheaper velour. So I know it mostly as that time of year when a truly inexplicable number of Americans descend on Manhattan to get drunk in bad Irish bars and yell loudly outside them. (Granted, you people also do that on the Fourth of July.) The people who live here the rest of the year generally stay in and/or pretend it isn’t happening. The mentions I hear of it usually have the sound of gallows humor, i.e. “Ugh. SantaCon.”

But the very fact that the people of SantaCon expect to be able to be such a nuisance without reprisal seems so telling.

You can see, for example, that these men are too drunk to be particularly effective hecklers. Mostly the protesters ignore them and march on. But the tableau sticks with you. Although outnumbered in the frame these idiots in Santa hats feel representative of some larger apathy of the American public. The fact that they happen to be white guys of the “bro” varietal, as Deadspin calls them, makes the image even more depressing. They’re more interested in “having fun” than in worrying about the growing authoritarianism of this country or about the militarization of the police.

And they seem unconcerned, you can’t help but notice, that their public drunkenness and belligerence might get them arrested. I bet they were right. I bet they didn’t get arrested. I bet they spent their Sunday in a peaceful and uninterrupted hangover. The distance between their expectations, and those of black men, is exactly what these protests have been about. But I still bet they don’t know that, and probably never will.

by Dish Staff

It sure sounds like Jeb Bush is going to throw his hat in the ring:

The big political news over the weekend is that it looks like Republican Jeb Bush is moving closer and closer to a presidential bid in 2016 — after announcing he would release 250,000 emails from his days as Florida governor, as well as release a new book. (You’re usually not taking these actions if you’ve decided AGAINST a presidential run, right?) Folks, this isn’t someone simply dipping his toes into the presidential waters; it’s someone who’s bouncing up and down on the diving board. More than anything else, Jeb’s moves are a signal to Republican donors and campaign staffers that he’s going to probably run.

Dougherty is against the idea:

Nominating Jeb Bush is an implied admission that the GOP cannot put together a post-Reagan presidential coalition without this one family.

It would mean advertising that the party that just put together an impressive, across-the-board electoral comeback in 2014, and that has performed unusually well in gubernatorial races several cycles running, is bereft of talent and must rely on an older brand — one that people tired of twice. Republicans should reject these assumptions about their party, no matter how desperate eight years out of the White House has made them.

The last few years have been ones of experimentation for the party. There is the libertarian-inflected Rand Paul; there are Chris Christies and Scott Walkers who promise dramatic confrontations with public bureaucracy. There is the family-friendly wonkery of Sen. Mike Lee of Utah. If people want to try Bushism again, they should at least have the decency to demand that Marco Rubio’s face be stretched over that political zombie’s head.

Larison reminds everyone that Jeb is as hawkish as his brother:

Everything Bush has said publicly on the subject confirms that he agrees with his party’s hard-liners on most issues, and he has never said anything that would suggest the opposite. As a domestic policy “centrist,” Bush’s ability to break with the party significantly on foreign policy is greatly reduced. Like many relative moderates, Bush overcompensates for his “centrism” on domestic policy by endorsing failed and confrontational policies abroad. For their part, quite a few movement conservatives are willing to forgive all kinds of heterodox views on many other issues so long as the “moderate” candidate fully embraces hawkish interventionism. That probably won’t be enough to win the nomination, but it will make the quality of the debate during the nomination contest that much worse.

Allahpundit doesn’t trust Jeb:

Is he running because he has a conservative vision, the odd Common Core or immigration heresy aside? Or is he running because the wingnuts are threatening to wrest the nomination from the donor class and someone with clout needs to step up and punch them in the face? Why would any tea partier turn out in the general election for a guy who took that approach with them, however successfully, in the primaries?

Jennifer Rubin disagrees with this framing:

The right wing, at least its loudest spokesman and crankiest bloggers, have decided Bush is going to snub them, run against the right and imitate Jon Huntsman, who seemed to delight in insulting conservatives. I have explained why I think this is mistaken. However, the challenge for Bush is to define what it means to be “conservative,” and not accept the notion that conservatism demands shutting down the government, rejecting a pathway to legalization (the MSM and right-wing often mischaracterize him as pushing a pathway to citizenship) and eschewing school standards. (Again, Bush contrary to the right-wing hecklers supports Common Core — or higher individualized standards).

And Husna Haq shows how much of a drawback Jeb’s last name could be:

While 73 percent of CEOs may favor a Bush candidacy, many Americans have indicated that they’re ready for fresh candidates and names – even Jeb’s own mother, Barbara Bush, who famously said last year that America “had enough Bushes.” An NBC/Wall Street Journal poll indicates that two out of three Americans (69 percent) say they agree with Barbara Bush.

(Photo: Former Florida Governor Jeb Bush speaks during the Wall Street Journal CEO Council in Washington, DC, on December 1, 2014. By Jim Watson/AFP/Getty Images)

by Dish Staff

That’s the contention of Brendan Nyhan, who calls the bipartisanship of the mid-20th century “a historical anomaly.” Hans Noel compares our period of polarization to previous ones using the above chart:

The parties were definitely polarized 100 years ago, but not on the basis of such widely held ideologies. There were ideological conflicts, to be sure, but they were not organized around a liberal pole opposed to a conservative pole. Those poles emerged, largely coming into full force by about 1950. It is hard to compare ideological conflict in the era of ideological blogs, cable news and talk radio to an era of pamphleteering and partisan newspapers. But the analysis in Political Ideologies and Political Parties in America suggests that ideology was less one-dimensional in the 19th century. Over time, liberal and conservative ideology has been sharper on every issue area, including race but also economics, social issues and foreign policy. This figure shows how well a one-dimensional model fits the opinions of writers in major political journals over time. The ideological organization increases in all issue areas from 1850 to 1990.

Julia Azari chimes in:

 Why does this shift from party to ideology matter?

Parties – even ones that are ideologically sorted –  are collective enterprises. They’re organizations and coalitions. Leading a party involves brokering among interests and distinct groups. Articulating an ideology does not. To the extent that presidential rhetoric shapes public expectations about what leaders will be able to accomplish, laying out an ideological agenda makes compromise even more difficult to achieve. As Hans points out, “Speaker Boehner has to placate a Tea Party faction that mostly differs with mainstream Republicans over how much they should compromise with Democrats.” When the president tells the nation that the election was a contest between highly distinct governing visions, it’s even harder for members of Congress to defend compromise to their constituents.

When presidents cast themselves as the vessels of new political visions, they contribute to the idea that the right leader, with the right words and enough political will, can simply cut through the “mess in Washington” – i.e., the organized interests of the people of the United States, and the Constitutional checks and balances – in order to bring about wholesale change and costless problem-solving. (Nyhan has smartly labeled this the “green lantern theory of the presidency,” and president scholars like George Edwards and the late Richard Neustadt have long noted the gap between expectations and actual presidential capacity.)

by Michelle Dean

Aaron Sorkin, burnishing his credentials as He Who Blows Hard While Knowing Little, has an op-ed in the New York Times today complaining about the journalistic feeding-frenzy on the hacked Sony emails. Naturally, his rhetoric spirals into the atmosphere. For example:

As a screenwriter in Hollywood who’s only two generations removed from probably being blacklisted, I’m not crazy about Americans calling other Americans un-American, so let’s just say that every news outlet that did the bidding of the Guardians of Peace is morally treasonous and spectacularly dishonorable.

You know, I haven’t looked at HUAC transcripts recently but I wouldn’t be surprised if accusations of “treason” and the like came up just as often as accusations of “un-Americanness.” Sorkin might want to cool it. Discomfort with the fact that these documents are stolen and worry about what this heralds for the protection of personal employee information is perfectly legitimate. Talking about journalism in terms that belong in some Lifetime remake of Braveheart, much less so.

But Sorkin’s not alone. Handwringing about the “ethics” of the Sony hack is at high tide right now. It puzzles me, mostly because I didn’t start out as a journalist, I started out as a lawyer. And as a lawyer, my sympathy lies with the poor in-house counsel shmuck who has undoubtedly been saying to Amy Pascal for years, “Please just pick up the phone next time.”

See, at the heart of Sorkin’s complaint is the idea that the studio’s business records are subject to an inviolable right of privacy. But even Sony’s lawyers know that’s never the case.

Crap emails, to borrow an old Jezebel phrase, have long gotten businesspeople in actual trouble. When I was a very bored first-and-second-year corporate litigator, a good portion of my job was devoted to trawling through other people’s inboxes. I worked on securities litigation and bankruptcy cases, so mostly it was investment bankers’ emails I’d end up with. But the principle extends everywhere. I’d always be looking for information about some dry financial transaction, but you’d be surprised what kind of asides would get tangled up with those business emails. Pictures, insults, “jokes.” And more than once, those “jokes” ended up bearing on the dispute at hand, getting cited in legal briefs, relied on by judges in their rulings.

Email, in other words, has long been something lawyers told rich businesspeople to be careful with. Even jokes that seem harmless at the time can come back to haunt you.

Take, for example, the colorful emails that flew back and forth about the production of the Jobs biopic. If anyone involved in that mess had decided to sue someone else, on virtually any theory, all of those emails would have been pulled into the case. Discovery standards in American courts are very wide; you can pull in virtually anything that’s relevant. Scott Rudin’s off-the-cuff assessment of Angelina Jolie’s talents could very well have been the lynchpin of someone’s argument about a contract. Even if the whole thing never went to trial, the size and nature of any settlement might well have hinged on his “candid” emails. And all that would happen whether or not Rudin liked it; in the context of a lawsuit his consent would be as irrelevant to the court as it is to the hackers.

Have all the qualms about hackers that you like, of course. But it’s odd to pretend that these big fancy business people had no idea of the risk. They chose to ignore it in favor of the expediency of negotiating over email, fine. But these men doth protest too much, I’m saying.

by Dish Staff

Brad Plumer unpacks the UN climate deal stuck in Lima, Peru:

Over the next six months, each nation will be required to submit a plan for how it will address future emissions. These plans will form the basis of a major new climate agreement to be negotiated in Paris at the end of 2015 and take effect by 2020.

The actual content of each country’s plan, however, is entirely voluntary. In principle, countries are supposed to pledge to do more on climate than they’ve already been doing. But there are no rules about how emissions actually get restrained or what the timetable should be.

Rebecca Leber looks at how the agreement was watered-down:

To ensure more than 190 countries were on-board, particularly the developing world, negotiators weakened much of the requirements for individual countries in the final 30 hours.

Lima set out to establish a minimum guidelines for what information countries must disclose about cutting carbon pollution. The seemingly small detail is important because it lets countries compare apples to apples, and potentially push for more cuts. Except now the review process won’t be as vigorous as it could be, thanks to a single word change. Now, most of the information for these plans will be voluntary, rather than mandatory, because the text says countries “may” include detailed information, rather than “shall.”

In the end, some of the toughest decisions were simply postponed until Paris.

Eric Holthaus declares that the “U.N. process isn’t where the action is on climate anymore”:

Progressive cities, transformative industries, and mass protests have the best chance of providing the tipping point that’s needed. These talks are a distraction from the kind of urgent, on-the-ground work that needs to happen in order to steer the world’s economy toward a carbon-free path and prepare for the impacts of increasingly extreme weather.

But Erik Voeten sees the accord as significant:

While new numerical commitments may work for smaller, more cohesive groupings of countries, such as the European Union, the global approach has since shifted to a different strategy, which is based on the realization that the main push for climate-friendly policies must come from within countries. The purpose of international agreements and institutions is to help those domestic groups that favor emission curbs, not to set central standards that the international community can’t enforce. This fits the insights from political scientists that the effect of many treaties depends on domestic politics.

So how does the Lima agreement help domestic groups that favor carbon reductions? A first, and very important, feature is that it brings the issue on the agenda in every U.N. member state. Every country has agreed to develop a national action plan, although the language on what exactly needs to be in that plan was watered down during the negotiations. Still, anyone who has ever participated in or studied an activist movement knows that getting an issue on the agenda is a major hallmark.

Some environmental groups are unhappy:

The target of the United Nations-hosted climate process is to limit the rise in global temperatures to under 2 degrees Celsius above pre-industrial levels. But the architecture of the emerging plan rests on a series of nationally decided commitments that are unlikely to ensure the steep emissions cuts that experts say are needed to meet that target. Environmental watchdogs said the Lima deal would not achieve the stated aim. “The outcome here does little to break the world from a path to 3 degrees warming or higher,” Oxfam said in a statement.

Robert Stavins responds to such criticisms. He argues that “these well-intentioned advocates mistakenly focus on the short-term change in emissions among participating countries  … when it is the long-term change in global emissions that matters”:

They ignore the geographic scope of participation, and do not recognize that — given the stock nature of the problem — what is most important is long-term action.  Each agreement is no more than one step to be followed by others.  And most important now for ultimate success later is a sound foundation, which is what the Lima decision can provide.

(Photo: Environmental well wishes are seen written on a wall on December 13, 2014 in Lima, as work continued on the final draft of a UN climate agreement. By Cris Bouroncle/AFP/Getty Images)